Appeal No. 2001-1409 Page 7
Application No. 09/044,214
This argument is unconvincing. First, Archetti does not teach the use of
cotton balls to collect saliva samples; it teaches the use of cotton swabs for that
purpose. In addition, the examiner has presented no evidence that either cotton
balls or cotton swabs, when used to collect saliva, would perform as required by
the claims, i.e., “to remove particulate matter from a saliva sample.” Therefore,
the examiner has not shown that the claimed kit, including all its limitations,
would have been obvious to a skilled artisan based on Todd and Archetti.
The method claims also contain limitations that are not taught or
suggested by the cited references. The claimed method requires, among other
things, “[s]potting the saliva filtrate or supernatant on to the immobilized antigen
on the solid substrate,” and “reading the intensity of the label in less than 5
minutes.” The method disclosed by Todd suggests neither of these limitations.
With respect to the time limitation, Todd carries out the assay for a minimum of
fifteen minutes (e.g., column 7, line 11) and some cases, as long as overnight
(column 7, lines 28-29). The examiner’s only attempt to address this limitation,
as far as we can find, was to assert that “[d]ipstick assays and test strips are well
known in the prior art which contain the time frame of 5 minutes.” Examiner’s
Answer, page 11. However, the examiner cited no evidence to support this
assertion, nor did she point to anything in the cited references that would have
suggested the five-minute limitation.
In addition, the examiner has not adequately explained how Todd would
have suggested spotting the saliva sample onto the immunoassay substrate. In
the assay disclosed by Todd, the antigen is spotted onto the substrate, which is
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007